The House Immigration Reform Bill: Pathway for DREAMers, Problem for Parents?

Share

The House Immigration Reform Bill: Pathway for DREAMers, Problem for Parents?

By
Milla & Associates, LLC
|April 08, 2013

With Congress returning from recess, an immigration reform bill was expected
to be unveiled this week. Much of the news coming from the Capitol has
reflected optimism from insiders among the bipartisan groups (one in the
Senate and one in the House) negotiating immigration reform legislation.
Despite the promises of impending immigration reform bills from the Senate’s
Gang of 8 and the House’s Secretive 8, large questions loom –
namely, the who, when, and what.

Who will be first to reveal a reform bill? Answer: flip a coin. Depending
on which article you read, either group could move first.

When will a reform bill be released? Some reports indicate this week, while
others have a slightly more relaxed timeline of this week or next. I think
the most accurate answer is, we’ll only know when it’s finally
released. Of course, these things take time, but there is a general understanding
that a reform bill needs to be introduced sooner rather than later, especially
since President Obama has expressed that his proposed bill is waiting
in the wings should the legislators’ negotiations stall. While the
legislators may have reached agreements in principle, it is another thing
to put pen to paper and draft language of a bill that could affect an
estimated 11 million undocumented immigrants, as well as the nation at
large. When discussing
the timing issue, at least one congressional aide indicated that it will not matter if
the Senate or House introduces legislation first, but suggested that it
would be “important…that both bills are out at the same time
so the debate can take place concurrently….”

What will the reform bill contain? Despite the speculation surrounding
the who and the when, information was released regarding the what, assuming
reports from insiders are accurate. Last week, House aides, speaking on
the condition of anonymity because no public announcement has been made,
provided some details on the House immigration reform bill.

Unlike the Senate’s reported immigration legislation that will create
one path to citizenship, the House immigration bill will offer three paths
to lawful status. An accelerated path will be available to immigrants
brought here as children, known as DREAMers, and for agricultural workers,
who provide a recognized essential workforce for the economy. The second
group will consist of those with family or employment ties who do not
have lawful status, but would otherwise be eligible to apply for permanent
resident status based on those ties. Under the current law, such individuals
would have to apply for permanent resident status by returning to their
home country for a visa interview. However, doing so would trigger 3-
or 10-year penalties to returning to the U.S. With the House immigration
reform bill, there would be no requirement to return to the home country.
The third category grants a probationary (also termed “provisional”)
lawful status to undocumented immigrants who pass background checks, pay
fines and back taxes, and learn English. Probationary status would permit
work and travel in the U.S. Recipients could eventually apply for permanent
resident (green card) status after 10 years, and then after 5 years of
residency, citizenship.

DREAMers

Understandably, much of the drive behind the immigration reform push concerned
the undocumented population that was brought here as children. The DREAM
Act was one such effort that was previously defeated. However, last year,
the Obama administration implemented the Deferred Action for Childhood
Arrivals (DACA) program, providing deferment of removal (deportation)
for people who were brought here as children and meet other requirements.
It seems that if there is one issue that (reasonable) legislators across
the spectrum can agree on regarding the undocumented, it will be relief
for those who were brought here as children. The House bill aims to achieve
that through an accelerated pathway to lawful status. As some House aides
indicated, immigration reform would not punish DREAMers for having been brought
here unlawfully through no fault of their own. A
recent statement from conservative Representative Raúl R. Labrador (R-ID), a key
part of House negotiations, reflects the mood among representatives drafting
the immigration reform bill: “Those who entered the U.S. as children,
through no fault of their own, will be allowed to have a pathway to citizenship.”

While Representative Labrador’s statement reflects a welcome change
among the Republican-led House, it did cause me to wonder how young undocumented
immigrants will qualify for the accelerated pathway under the House reform
bill. Will it be necessary to prove 1) they were brought here and 2) that
their arrival was by no fault of their own? Given the population in question
and purpose behind reform, the requirements of reform legislation will
hopefully mirror deferred action (DACA), which does not require either.

What about mom and dad?

With Representative Labrador’s words still echoing in my mind, my
next thoughts turned to the parents of DREAMers. If DREAMers shouldn’t
be punished, does that mean the parents will? If children who were brought
here against their will shouldn’t be blamed, will their parents
in some way take the fall? It would appear that the parents of DREAMers
would at least qualify for probationary status under the House reform
bill’s third category, assuming they pass background checks, pay
fines and back taxes, and learn English. However, would the fact that
an undocumented parent brought his or her child into the U.S. unlawfully
affect eligibility or compromise status at some point?

Under the current law, smuggling is a ground for denying admission and
for ordering removal (deportation). “Smuggling” is defined
broadly under immigration law to include those who transport individuals
illegally into the U.S., but also those who encourage, induce, assist,
or aid another individual’s unlawful entry. As a ground of inadmissibility,
smuggling would prevent a permanent resident (green card) applicant from
being approved, unless he or she qualified for a waiver or the automatic
exemption. The government may waive the smuggling penalty for humanitarian
reasons, to assure family unity, or when it is otherwise in the public’s
interest, but only for certain permanent residents and for certain family-based
permanent resident applicants. The law also carves out an exemption pursuant
to the Immigration Act of 1990.

It is unknown if and how immigration reform will impact the smuggling bar
and vice versa. As the bills are released and debated, that is one issue
to keep an eye on. If DREAMers are going to qualify for an accelerated
pathway, will they have to throw mom and dad under the bus to prove eligibility
as individuals who were brought here as children at no fault of their
own? I would hope not, and I believe not, based on how DACA applications
are being processed. However, that is not to say that parents of DACA
recipients or DREAMers will not eventually face questions about how their
foreign-born children entered the U.S. It seems like a cruel approach,
but that issue has already appeared at immigrant visa interviews in Ciudad
Juarez, Mexico. That practice has great relevance to current applicants for
provisional waivers, which only waive certain unlawful presence bars.

If the smuggling bar stands, I would expect (and hope) that those who qualify
for immigration reform would be exempt. At the very least, I hope that
the government would apply a minimal threshold for granting a waiver for
humanitarian reasons, to ensure family unity, or to serve in the best
interests of the public. To do otherwise would defeat the purpose of immigration
reform and the value of keeping families together.

*If you have questions or concerns about the smuggling bar or how immigration
reform may apply to you, please contact me or another experienced immigration attorney.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.